Justice Scorecards

Viviane Reding, the Justice Commissioner, has announced a Justice Scorecard. The concern over justice and the rule of law in Hungary and Romania lately prompted the move. Romania is subject to reports on the condition of its justice system.

On EUObserver:

""I am prepared to come once a year before this house to share with all of you the commission's assessment of the justice systems of the 27 member states," she told MEPs in Strasbourg.

The scoreboard would gauge the various strengths and weaknesses of each member state by benchmarking judicial "strength, efficiency and reliability.

People from Reding's department would probe the national set-ups and issue annual reports, paying particular attention to the independence of the judiciary.

[...]

Reding now wants to extend such annual reports [Romania is subject to annual reports] to the rest of Europe and claims to have the backing of several member state ministries, including Germany's foreign minister.

"We need such a new mechanism. Because our infringement procedures are too technical and too slow to react in situations of high risk to the rule of law," she said."

It's a good idea because the infringement procedures deal with the technical and narrow infringements of EU law, which is not set up to deal with broad rule of law and judiciary matters, but co-ordination in justice and home affairs between national justice systems. This means that the infringement proceedings don't actually address the core issue of the protection of the rule of law and fundamental rights, but national leaders can claim that their proposals and measures are compatible with European laws and values. I'd have preferred it if such reports were to be issued by the Fundamental Rights Agency to ensure more independence (and continuity - will these scorecards continue after Reding has left the department?), but this is a good start.

PES Congress to be moved from Bucharest to Brussels

Due to the political battles between the Romanian governing coalition of socialists and liberals and the conservative president, the Party of European Socialists (which sits in the Socialists and Democrats group in the European Parliament) will move its September congress from Bucharest to Brussels.

The leader of the S&D group in the European Parliament, Hannes Swoboda, says that the move came at the request of the Romanian Prime Minister (and PES member) Victor Ponta, but the change of venue is being interpreted as a result of political pressure and a desire of political leaders not to be seen with a government that's had its commitment to the rule of law so seriously questioned over the past few months.

From EurActiv:

"[Socialist sources from the European Parliament], who asked not to be named, said “only a couple of leaders” of the PES-affiliated parties across Europe had confirmed attendance at the Bucharest congress, the rest apparently being reluctant to be hosted by Ponta, who has been under fire since he took office this spring."

The loss of the congress may also be a blow to Ponta's image and electoral strategy for the autumn election:
 

"When the decision to hold the congress in Bucharest was taken last year, Ponta was in opposition. As Romania’s parliamentary elections are due in the autumn, the congress was designed to boost his international image ahead of the poll."

So EurActiv is (indirectly) calling the news of Ponta's request  out for what it is: a face-saving exercise:

"PES sources said that while leaders of centre-left parties didn’t want to be criticised at home for being hosted by such a controversial leader as Ponta, there were also concerns that he should not be weakened before the election.

It would be a sharp blow for Ponta, who will turn 40 on 20 September, if the congress is moved away from Bucharest, a Romanian PSD source told EurActiv.

In any case, it appears that a decision to move the congress to Brussels should be coupled with a face-saving reason to be used internally in Romania, a difficult exercise for the PES secretariat."

This shows that the PES is much more uncomfortable with its Romanian member's actions than its weak response to the political crisis on the floor of the European Parliament would suggest.

Romania and the rule of law in the EU

The EU is a strange creature: in order to join a country must respect democracy, fundamental rights and the rule of law - a concept that is becoming ever more detailed and developed on the European stage - but the EU finds it incredibly difficult to ensure these standards are respected one a country is inside the club. There have been a few battles over the last few years: France's treatment of the Roma, Hungary's constitutional changes in the media and the courts, and now Romania.

In Romania there is a power struggle over the constitution and the presidency. The social democrat Prime Minister, Victor Ponta, wants to impeach the unpopular conservative president Traian Basescu and has tried to change the threshold necessary in the process to get it done. The Economist also lists a number of seriously worrying changes that the Romanian government wants to bring about:

"His government has replaced the ombudsman (the only brake on emergency government ordinances), grabbed control of the Monitorul Oficial, the official promulgator of laws and decrees, taken over the national cultural institute and threatened to fire the judges of the constitutional court."

These changes has provoked concern in Brussels (and Berlin) over the threat to the rule of law. There is a way of sanctioning Member States that break the values of the EU: under Article 7 TEU a country in breach of these values can be stripped of its voting rights. However it's a nuclear option, and one that is difficult to threaten, never mind enforce or enact. There are two linked reasons for this: one technical and one political.

Politically it is hard for Member States to condemn a fellow Member State, and if the government of the offending Member State is aligned to either the EPP or PES (sitting in the S&D group in the Parliament), then it could have a strong lobby in its favour. Both the S&D and EPP have acted in the Hungarian and Romanian cases in support of governments that they are aligned with, as the Financial Times Blog rightly points out. The tactic used is generally to call for time while the Commission launches an investigation. This brings us to the second problem: the Commission only can investigate on narrow technical grounds, which allows for governments to make some concessions on these matters to lessen political pressure, while the measure is largely passed intact.

The Commission is equipped as a guardian of the treaties, but not as a protector of fundamental rights. To change this and to create a better culture for fundamental rights protection, it would be better for the Fundamental Rights Agency* to be empowered to assess the state of fundamental rights and compliance with the rule of law and EU values. Then it could recommend in a report what needs to be changed to bring a government back into line.

It would still be up to the Commission, Council and Parliament how they should act and if they invoke Article 7 TEU. Still, it is important that we move away from the culture of hiding behind technical requirements and changes and to a culture of debating the substance of protecting rights and the rule of law in the EU and the Member States. Even now European approval - or lack of sanction - carries a certain moral authority and legitimacy. We should make sure this is put to good use and not twisted and hollowed out to provide cover for subverting the rule of law. *The FRA's remit would probably need to be expanded for this.

Schengen Wars 2

Romania and Bulgaria's Schengen aspirations are being put on hold again, with the Netherlands and Finland opposing the phased introduction of the two countries into the border-free zone due to concerns over their levels of corruption. Before the vote, Romania blocked tulips from being imported across its border. Their accession was blocked earlier this year in January, which also saw inept diplomacy by Romania.

So are the concerns over the levels of corruption in Bulgaria and Romania justified? The Commission helps and monitors the reform and implementation of changes in the justice system required by EU membership through the "Co-operation and Verification Mechanism" (or CVM). The latest reports on Bulgaria (PDF) and Romania (PDF) were delivered in July. Both reports documented progress, but there's still a long way to go.

The Bulgarian report raises concerns over corruption and over accountability of the judiciary (p.3-4):

"Since last summer, a number of acquittals in cases involving high-level corruption, fraud and organised crime have exposed serious deficiencies in judicial practice in Bulgaria. These deficiencies have not been properly analysed or followed up by the leadership of the judiciary, the Supreme Judicial Council, the General Prosecutor and the President of the Supreme Court of Cassation. Although the revised Judicial System Act adopted in December strengthens the judiciary's accountability, the law has not yet been implemented as intended. The quality and transparency of several important appointments within the judiciary since the beginning of this year have been questioned, leading to unprecedented public protests and a debate on possible constitutional amendments. In addition, allegations of corruption within the judiciary are still not pursued in a systematic way as recommended by the Commission.

[...]

Judicial appointments still lack the necessary level of transparency and credibility. An important senior appointment by the Supreme Judicial Council in November 2010 raised concerns as regards the lack of transparency and competitive character. The entry into force of the newly amended provisions of the Judicial Systems Act in
January 2011, has unfortunately not yet improved the situation as regards senior appointments, which have been still carried out under the old rules and lacked real assessment of the professional qualifications, managerial skills and personal integrity of candidates. Furthermore, a recent nomination was followed by allegations of conflict of interest and procedural irregularities in an ongoing trial handled by the successful candidate. As a protest, two members of the Supreme Judicial Council resigned and criticised the appointment decisions as pre-determined. The subsequent mobilisation of professional associations of magistrates and civil society calling for reform of the Supreme Judicial Council sends an important signal of support for judicial reform. Recommendations by civil society to hold public debates and announce the names of candidates at an earlier stage are laudable. The appointment of highly competent and motivated magistrates of unquestionable integrity via transparent procedures, in particular for the new specialised court for organised crime, is indispensable to successfully implement judicial reform.

[...]

Criminal investigations against magistrates are still not systematically launched by the
prosecution upon allegations of corruption. The decision of the Supreme Judicial Council in June to involve a magistrate with a disciplinary record in the recruitment panel for the new specialised criminal court raises serious concerns. Overall, there is a lack of consistent disciplinary practice. These problems remain a major factor undermining public trust in the judiciary."

Policing in the area of organised crime is also an area of concern (p.5):

"In spite of persevering police actions to tackle organised crime, the overall results need to be significantly improved. Although the joint team on organised crime achieved several indictments related to important organised crime-groups and some convictions have been rendered, other important cases have been concluded with acquittals since the Commission's last annual report. In appeal, severe detention sentences have been pronounced but not yet enforced in one emblematic organised crime case. Weaknesses exist in the collection of evidence, the protection of witnesses as well as in investigative strategies, comprehensive financial investigations and the securing of assets. The General Prosecutor should systematically analyse the reasons for acquittals in high level cases, make recommendations for the handling of future cases when shortcomings in the procedure have been identified and appeal the acquittal decisions when it appears that the Courts did not properly assess the evidence provided."

The report notes a lack of "convincing results" regarding corruption, with cases against former ministers and MPs, and cases involving fraud of EU funds ending in acquittal (p.6):

"The analysis of some of these cases by the Commission and independent experts demonstrated serious weaknesses in judicial and investigative practice. These weaknesses mainly concern the collection of evidence, the protection of witnesses and the general lack of investigative strategies, comprehensive financial investigations and securing of assets. Coordination within the prosecution and between the prosecution and the police should be improved. These weaknesses are compounded by an out-dated Penal Code. Court practice is permissive and excessively cautious, overly attentive to procedures at the expense of delivering justice. While the revision of the Penal Code is advancing, immediate corrective measures, such as the use of interpretative rulings by the Supreme Court of Cassation or legislative amendments should be considered, since the new Penal Code cannot be expected to enter into force before late 2013."

The Romanian report shows some significant improvements, as well as highlighting areas that need a lot of progress. I won't quote from the report to the same extent as the Bulgarian one - I'd recommmend reading both to get a fuller picture of the situation in both countries - but I'll quote to summary paragraphes from the start (p.3):

"Since the Commission's last annual report, Romania took significant steps to improve the efficiency of judicial procedures and continued preparations for the entering into force of four new codes which are the foundation for a modern judicial process. In advance of the implementation of the new codes, the Small Reform Law has brought improvements for the celerity of the judicial process. Romania also responded swiftly to the Commission’s recommendation by adopting a new legal framework for the National Integrity Agency. The National Integrity Agency has been operational under this new legal framework and started to re-establish its track record of investigations. Although not part of the CVM benchmarks, the authorities decided to carry out reviews of the judicial system and of public procurement and to make an evaluation of anti-corruption policy. During the same period, the National
Anticorruption Directorate (DNA) showed a continuously convincing track record in the investigation of high-level corruption cases.

Despite this progress since July 2010, consistency and results in a number of areas remain a challenge. Progress in the fight against corruption still needs to be pursued. Several important high-level cases remain delayed in court for several years and have also seen little movement during this period. Urgent action must be taken to accelerate these trials and prevent them being struck down because of reaching statute-barred periods. The fight against corruption should remain a top priority and be coordinated with the help of a new comprehensive and robust anti-corruption strategy. Urgent measures are needed to improve the recovery of the proceeds of crime, the pursuit of money laundering and protection against conflict of interest in the management of public funds. Better results should be demonstrated in the confiscation of unjustified assets and in delivering dissuasive sanctions for incompatibilities."

Though the domestic reasons for blocking Romania and Bulgaria's phased entry into the Schengen Zone may have more to do with political pressure from the far-right, there are real concerns over the handeling of corruption in romania and Bulgaria. It's true that both countries meet the technical requirements for entry, and that adding this judicial and policing requirements is moving the goalposts, but these issues do need to be tackled as obligations of EU membership. While the politicking might be distasteful - and condemned by both the EPP and the S&D groups in the European Parliament - there is truth to the contention that it's harder to get EU Member States to comply with EU conditions once they're in the club.

Schengen Wars

After France and Germany sent a letter to the EU opposing the accession of Romania and Bulgaria to the Schengen zone (a decision each Schengen member state has a veto on), Romania has hit back with suggestions that it will delay Croatian accession (or that the CVM [Co-operation and Verification Mechanism] that applies to it and Bulgaria should be applied to Croatia as well), and that it might delay ratifying the Protocol allowing the 18 Lisbon MEPs from taking their seats in the European Parliament. France and Germany are blocking the expansion of the Schengen zone to include Romania and Bulgaria because of their failure to make good progress in combating corruption and organised crime. However, technically both Bulgaria and Romania have met the criteria for acceding to the Schengen zone, and the two sets of criteria are supposed to be separate.

Romania's fight-back has been couched in the language of the rights of small states against the power of the Franco-German core. Ironically, a few days before EUobserver reported the Franco-German letter, I heard this policy being held up as an example of successful small state diplomacy - the Netherlands was extremely reluctant to let Romania and Bulgaria join, and wanted to put pressure on them to speed up justice reform. (Justice, immigration and law and order are policy areas the Dutch government is very keen on). Though the Netherlands has a veto in this area, using the "nuclear option" isn't a great diplomatic technique, and it's much better to get wider support for their position, so the Dutch lobbied the other states (particularly France) on the issue. (Yet another example of the veto not being a practical tool in European politics, I think).

In any case there's the question of whether or not it's right to move the goalposts like this. Wikileaks, as the EUobserver reported, has shown the considerable frustration in the EU over the the failure of the 2007 accession states to effectively fight corruption. The EU has been lax and hasty in its enlargement, and there's little incentive for states to reform after they've joined. It is hard to see how corruption and organised crime can be divorced from the burden Romania and Bulgaria would have to assume in becoming the EU/Schengen zone's border. Would border controls be or remain effective?

It may be unfair to tie these issues together after the fact, and the EU should have perhaps linked them more closely earlier, but these issues aren't optional for Romania, Bulgaria or the EU, and we have to find some way of ensuring that they will be tackled. There is a big question over big states versus small states rights, but this is not the most glorious way of fighting the small states' fight - because in the end this is about Romania and Bulgaria living up to the commitments of membership, which will benefit them and and EU.


UPDATE: Romania has given up on this strategy. Also worth reading is Kosmopolito's critque of Romania's brand of EU politics.